Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 94

XC477/13

Lord Justice General

Lady Smith

Lady Clark of Calton

OPINION OF THE LORD JUSTICE GENERAL

In the Referral by

THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the case of

PATRICK DOCHERTY

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

For the appellant: Mitchell, Brown;  John Pryde & Co SSC, Edinburgh

For the Crown: Prentice QC (sol adv), AD;  Crown Agent

29 August 2014

Introduction

[1]        This is an appeal against conviction following upon a referral to this court by the Scottish Criminal Cases Review Commission (the Commission).  On 1 March 2005 the appellant was convicted, along with his co-accused Brendan Dixon, of the murder of Mrs Margaret Irvine at her home in Galston.  The Crown case was largely circumstantial;  but there was evidence of a statement by the appellant that could be said to display special knowledge.  The following is the detailed rehearsal of the evidence that was given by this court when it refused the appellant’s first appeal against conviction in 2010 (Patrick Docherty and Brendan Dixon v HMA [2010] HCJAC 31):

“[2]      The victim, a 91-year-old lady, had been found dead in her home at 21 Barward Road, Galston at 4.50pm on Sunday 28 September 2003.  She had head injuries, a broken rib, and bruising on the right hand, arm, left wrist and thumb.  She had been gagged with a duster and left lying face down on her bed with her hands tied behind her back.  The cause of death was asphyxiation.  Ultimately the two appellants and Colin Miller were charged with murder.  The Crown case was a circumstantial one.  Each appellant lodged a Special Defence of Alibi.  The first appellant maintained that he had been in his house with his partner Irene Rowan and her daughter on Saturday night and Sunday morning (27 to 28 September 2003).  The second appellant’s position was that he had been at his sister’s house on Saturday night and Sunday morning.  During the trial, the judge refused a “no case to answer” submission made in respect of each appellant.  The appellants were convicted and sentenced to life imprisonment.  Colin Miller was acquitted not proven.  Both appellants appeal against conviction, contending that the circumstantial evidence was insufficient to convict them; that there was non-disclosure of police statements given by crown witness number 22 Sheena Orr; alternatively Mrs Orr’s police statements comprised fresh evidence, and in a further alternative there had been defective representation in that the defence had not obtained the information available in those police statements; and finally in the case of the second appellant, that there had been a misdirection relating to corroboration and inappropriate treatment of two defence witnesses by the trial judge.

[3]        The evidence established that Mrs Irvine was a frail but strong-willed lady who lived alone in a semi-detached two-storey house at 21 Barward Road, Galston.  She needed a Zimmer and an electric stair lift.  Carers called regularly to help her with meals and self-care. Once the carer had unlocked her door, Mrs Irvine preferred to leave it unlocked to allow people to come in and out.  Mrs Irvine’s nephew Charles Keers (aged 51) lived in the semi-detached house next door.

[4]        Some six weeks prior to Sunday 28 September 2003, Mrs Irvine’s house had been broken into and money and jewellery stolen.  That incident was reported in the press, and discussed locally.  Thus it was known that Mrs Irvine kept significant amounts of cash in the house.

[5]        Early in the morning of Sunday 28 September 2003, one of Mrs Irvine’s week-end carers arrived at 7am and gave her breakfast: half a roll with butter, and a cup of tea.  Mrs Irvine was wearing her nightdress and was sitting up in bed.  She ate breakfast in bed, and told the carer that she intended to have a lie-in.  When the carer left at about 7.25am, the bedside light was on.  Later that Sunday, at about 4.50pm, another carer arrived.  Mrs Irvine would normally have been in the living-room at that time, but she was not there.  The carer went upstairs and found Mrs Irvine slumped face-down on the bed. She was wearing a nightdress and pants.  Her hands were at her back.  The carer went to a neighbour who called the police and an ambulance.  It was found that the electricity at 21 Barward Road had been switched off at the mains; the downstairs telephone had been disconnected; a Zimmer frame had been moved from the floor of the stair-lift in the hallway, and was not readily accessible to the stair lift-user; a yellow duster was also found in the hallway; drawers in the living-room were partially opened and a musical jewellery box was open and items strewn about; in the spare bedroom, drawers were partially opened, and a musical jewellery box open; in the main bedroom the pillows on the bed were out of place and a hand-bag lay under a pillow.  It was also found that Mrs Irvine had her hands tied behind her back; one plate of her dentures was in her left hand, and the other plate was on the bed; a yellow duster had been forced into her mouth and throat.  The police subsequently found a key to a wardrobe, which contained cash amounting to almost £9,000.  The DNA of an unidentified male was found on Mrs Irvine’s pinkie.  Unidentified footprints were found outside the house.  There was no forensic evidence linking the crime to either appellant …

[9]        On the day of the incident, Sunday 28 September 2003, Alison Rowan (aged 19) the daughter of the first appellant’s partner Irene Rowan, saw the first appellant coming into his house at 21 Knowehead Road, Hurlford, at 11am.  He was then physically sick.  By contrast, Irene Rowan gave evidence that the first appellant had been in the house all morning and that he was in good health, although in prior inconsistent statements given to the police, she described the first appellant as coming into the house at 11am and lying on the couch as he was not feeling well.

[10]      In the days and weeks following the incident, the first appellant made certain comments and behaved in certain ways.  For example:

[11]      To David McCormack, the first appellant said that he had heard that Colin Miller “had something to do with it.”  The first appellant claimed that Mr Miller had told him that he (Miller) had been in the old woman’s house.  He heard a commotion upstairs and the old woman screaming.  He then pushed somebody out of the way, and said “I’ll show you how to deal with this.”  Subsequent evidence was led indicating that Colin Miller could not have told the first appellant any of the above.  The jury were invited to conclude that, in order to have that special knowledge, the first appellant must have been a participant in the break-in and present when Mrs Irvine was being attacked. 

[12]      To Martin Robertson, the first appellant claimed that the second appellant had done it, but ultimately said “You know who did it, Martin”, and winked.  Mr Robertson formed the impression that the first appellant was boasting that he had committed the deed, but was trying to put the blame on the second appellant.

[13]      To Detective Constable Strickland, who took a witness statement from the first appellant on 15 October 2003, the first appellant stated that he never left his house at 21 Knowehead Road, Hurlford, from Saturday night into Sunday morning.  He had learned of the murder from the radio on Sunday morning.  However other evidence established that Mrs Irvine’s body was only discovered at 4.50pm on Sunday, and that details were not sent to the press until 11am on Monday 29 September 2003.

[14]      To Andrew Hay, a friend, the first appellant (while denying being involved) said that he had heard that:

“…Brendan Dixon, Colin Miller and a guy called Smith had done that to that woman… Colin’s meant to have bit the old woman’s fingers…Brendan is meant to have freaked out and ran out.”

The first appellant explained his possession of this information by saying “I just got telt.” Again, the Crown suggested to the jury that the statement demonstrated special knowledge.

[15]      To Detective Sergeant Lorimer, who interviewed the first appellant on 31 October 2003, the first appellant claimed to have been told by Andrew Hay that the murder was committed by Colin Miller, Brendan Dixon and Chris Smith.  However, Andrew Hay denied giving him any details about the murder.  The first appellant claimed that Andrew Hay told him that-

“…Chris and the Colin, Chris and the Brendan wan is meant tae be in the hoose, daein the hoosebreakin and Colin Millar wan is meant tae be outside cop-watchin.  He’s heard aw the commotion, come intae the hoose an went like that, whit’s happening, and they’ve apparently went like that, she’s no telling us where the money is an whatever an Colin Miller’s supposed tae huv gone like that, well this is how ye fuckin dae it, [threw] her doon an tied her up.”

The Crown suggested to the jury that the statement demonstrated special knowledge.

[16]      To a friend Hayden McGonigle, the first appellant said that he had been interviewed by the police about the murder.  Mr McGonigle commented on the fact that the first appellant had dyed his hair.  The first appellant replied “DNA, you know what I mean.” Mr McGonigle also gave evidence that the first appellant said:

“Brendan [the second appellant] was a sore heid.  You couldnae take him on a turn anywhere.”

Mr McGonigle understood that the first appellant was complaining that he had laid the turn on and that the second appellant had participated but done something wrong.  In Mr McGonigle’s words:

“He [the first appellant] was making out that Brendan had done something wrong but he wouldn’t say any more.”

[17]      Edward O’Brian gave evidence that in October 2003 the first appellant had been worried, gaunt and on edge, “definitely ducking and diving, using all the back closes, entry doors and all that.”

The procedural history

[2]        In October 2009, two weeks before the hearing in the previous appeal, senior counsel for the appellant moved the court to give him an opportunity to amend the grounds of appeal.  He said that the appellant had only recently instructed him, having dismissed his previous legal team, and that, on a review of the papers, he had decided that the grounds of appeal should be amended.  That motion was granted.  

[3]        On 3 November 2009 at the outset of the appeal hearing, senior counsel sought to lodge three additional grounds of appeal.  Those are the grounds on which the Commission has made this referral; namely (1) that the police statements of Crown witness Mr Charles Keers were not duly disclosed by the Crown (2) that the trial judge erred in failing to direct the jury in relation to Mr Keers’ dock identification of the appellant, and (3) that the appellant gave several interviews to police officers without having had access to a solicitor.  Senior counsel for the appellant acknowledged that there was no good reason for the late presentation of these additional grounds.  The court refused to receive them (Patrick Docherty v HMA [2010] HCJAC 81, at para [6]). 

[4]        The appeal proceeded on the basis of the remaining grounds, namely insufficiency of evidence (grounds 4 and 5) and the non-disclosure of police statements relating to Crown witness Sheena Orr (ground 1A).  The court refused all three grounds.  It concluded that the trial judge had been right in repelling the submission of no case to answer.  It was not persuaded that the Crown’s admitted failure to disclose the police statements constituted a miscarriage of justice (McInnes v HM Adv 2010 SCCR 286), particularly in view of the strength of the Crown case.

[5]        On 30 June 2010 the appellant sought leave to appeal to the Supreme Court on the basis that ground 1A and the grounds that had not been received raised devolution issues.  The court noted that no devolution minute was lodged.  It concluded that the case did not raise points of law that merited consideration by the Supreme Court.  It refused leave to appeal (Patrick Docherty v HM Adv [2010] HCJAC 81 at [6]).  The appellant sought special leave to appeal from the Supreme Court.  It too refused leave.  At the hearing in this appeal, we were advised by counsel for the appellant that a minute had been drafted before the appeal hearing in 2009 but since the court refused to receive the late grounds of appeal, the minute was not in the event lodged. 

[6]        These procedures were concluded before the commencement of the Scotland Act 2012.

The referral by the Commission
[7]        The appellant applied to the Commission in respect of the three grounds of appeal that had been refused by this court on 3 November 2009.  The issues and the Commission’s conclusions on them are as follows.

Non-disclosure

[8]        It is agreed that the Crown failed to disclose eleven police statements of Charles Keers.  In those, he gave various accounts of his recollection of the date of the murder.  These accounts had a bearing on the estimated time of death.  His statements were inconsistent in relation to (1) the times at which he heard noises in the deceased’s house next door; (2) his sighting of two men in the vicinity of the deceased’s house just before the first break-in on 4 July 2003, on various occasions in the ensuing weeks and on the day before the murder; (3) his conversation on 20 September 2003 with a drunk man in a public house who told him that the deceased had been tied up, gagged and battered, information that showed special knowledge on the part of the drunk man.

[9]        The appellant contended that the non-disclosure was prejudicial to his defence because if the statements had been provided in advance of the trial, Mr Keers could have been cross-examined on inconsistencies in his earlier statements.  The inconsistencies would have affected the reliability of his dock-identification of the accused and would have had a bearing on the time of death. 

[10]      The Commission accepted that because of the non-disclosure of the statements the defence lost the opportunity to show that Mr Keers withheld information in his earlier statements.  The Crown relied on the importance of Mr Keers’ identification of the appellant as the smaller of the two men seen at the time of the break-in and in the weeks before the murder.  The Commission considered it significant that if the defence had known that in an earlier statement he had confirmed that these two men were present at the first break-in on 4 July 2003, the defence could have shown that the appellant had been a prisoner in HMP Bowhouse at that date.  The court’s consideration of the non-disclosure of Sheena Orr’s statements should also be reconsidered in light of the undisclosed statements of Mr Keers. 

[11]      In the Commission’s view, the Crown case was thin.  In all the circumstances, it concluded that there was a real possibility that the jury would have reached a different verdict if the undisclosed evidence had been before it and that there might have been a miscarriage of justice. 

Cadder

[12]      The appellant gave a number of statements and interviews to the police without the benefit of legal advice.  Two are objected to in this appeal.  On 15 October 2003 the appellant gave a voluntary statement to the police.  On 31 October 2003 he was interviewed by the police as a suspect.  The contents of the statement and of the interview were referred to by this court in the summary of the evidence that I have quoted.

[13]      The appellant submitted to the Commission that the evidence of the police statements was obtained in breach of the applicant’s right to legal advice when he was detained as a suspect in terms of section 14 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) (Cadder v HMA 2010 SCCR 951).  The leading of that evidence was in breach of article 6. 

[14]      The Commission concluded that the evidence of the police interview was inadmissible; but that the voluntary statement made by the appellant to the police on 15 October 2003 was admissible (Ambrose v Harris [2010] UKSC 43; Zaichenko v Russia, application no 39660/02, Final Judgment 28 June 2010).  It accepted that its conclusion about the police interview did not in itself mean that the trial was unfair.  It would be unfair only if it could be shown that (1) without the evidence of the police interview there would have been insufficient evidence for a conviction or (2) taking all of the circumstances of the trial into account, there was a real possibility that the jury would have reached a different verdict if that evidence had not been before it (McInnes v HMA, supra). 

Dock identification

[15]      The dock identification in this case was particularly weak.  Mr Keers said that the appellant resembled one of the two men whom he had seen on various occasions walking past the deceased’s house.  Mr Keers had not attended an identification parade. 

[16]      The appellant submitted to the Commission that the trial judge did not give a sufficient warning to the jury in relation to the dangers of such an identification and that his failure to do so was a misdirection that resulted in a miscarriage of justice (cf Holland v HM Adv 2005 SCCR 417;  Brodie v HM Adv 2013 JC 142). 

[17]      The Commission concluded that Mr Keers’ identification of the appellant was an important part of the Crown case.  Although senior counsel made the defence position on resemblance identification clear to the jury, the absence of specific directions about the dock identification was a material misdirection when seen in the context of the whole evidence against the appellant (McInnes v HM Adv 2010 SCCR 286).  The case could be distinguished from Toal v HM Adv (2012 SCCR 735).  There was a real possibility that the jury would have returned a different verdict if such directions had been given, particularly where the Crown had failed to disclose the police statements of Mr Keers.  Those statements deprived the defence of material that could have undermined the dock identification. 

The Commission’s overall conclusions

[18]      The Commission accepted that there was a body of evidence that, taken at its highest, entitled the jury to convict; namely, the evidence that the appellant invited an associate to go housebreaking with him two days before the murder; and the evidence of Alison Rowan that the appellant entered their shared dwelling hours after the time of the murder, contrary to his own account of his whereabouts, and that at that time he was physically sick and was in a shaken state. 

[19]      However, applying the McInnes test, the Commission concluded that, in light of the “thinness” of the Crown case, the failure to disclose, the leading of the inadmissible statement and the misdirection, individually and collectively, created a real possibility that, but for them, the jury might have reached a different verdict.  The appellant has adopted the Commission’s reasons for referral as grounds of appeal.

Appellant’s submission on compatibility issues
[20]      Counsel for the appellant conceded that the dock identification ground did not comprise a convertible devolution issue.  However, the remaining grounds of appeal did.  While the acts complained of pre-dated the 2012 Act, the grounds of appeal were devolution issues that can now properly be described as convertible devolution issues and therefore compatibility issues (1995 Act, section 288ZA).  There can be a compatibility issue only in respect of something that has occurred before the commencement date of the Act if it was capable of being a devolution issue (a “convertible devolution issue”).   It can arise in respect of an act of the Lord Advocate provided that the devolution issue had not been “finally determined” before the commencement date (Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013 (SSI No 7), para 2(1)(c); O’Neill v HM Adv [2013] 1 WLR 1992, Lord Hope at paras [4]-[11]).  The disclosure and Cadder grounds were devolution issues before the commencement of the 2012 Act, regardless of the fact that no minutes were lodged.  Since the appeal court in 2009 refused to receive the grounds of appeal now referred by the Commission, it did not determine the merits of those grounds.  Therefore, there had been no determination of the devolution issues.

Conclusions

Non-disclosure

[21]      Counsel for the appellant submitted that the undisclosed statements created a doubt as to the timing of death.  The most compelling piece of evidence in terms of the timing of the event was the evidence of Mr Keers.  He said that at around 8am he heard a roar lasting a few minutes and then heard someone running down the stair.  That was a compelling account of an assault taking place and someone fleeing the scene.  It was unchallenged.  When preparing for the trial the defence had no reason to suspect that Mr Keers might not have been telling the truth.  He was a distraught nephew who was wakened by the sound of a loud roar.  That was powerful evidence that the incident took place at some point before 8am.   If all of Mr Keers’ statements been disclosed, the defence would have had good cause to question his account as to what he heard and when he heard it, and to question the reliability of his dock identification.  It might well have given greater emphasis to the evidence of Sheena Orr who said she had seen a person at the home of the deceased at around 11am to midday.  The Crown case was that by 11am the appellant was at home being sick.  A different tactical decision could have been taken if the statements had been disclosed. 

[22]      That was particularly so since the forensic evidence could not pinpoint a time of death.  Evidence as to the time of death was based on an analysis of the deceased’s stomach contents and the digestion of her last known meal.  The home help said that she gave the deceased a roll and butter around 7.30am.  The post mortem evidence was that the stomach contents contained a roll and jam.  That might mean that the deceased had gone downstairs and made herself a roll and jam, which might have been after 8am. 

[23]      The material within the statements materially weakened the Crown case or materially strengthened the case for the defence.  There was a real possibility that the jury would have reached a different verdict if the withheld material had been disclosed to the defence (Fraser v HM Adv 2011 UKSC 24; McInnes v HM Adv, supra).

Dock identification

[24]      Counsel for the appellant submitted that a strong direction by the trial judge was an important safeguard, particularly since there had been no identification parade (Holland v HM Adv 2005 SCCR 417 at para [58]; Brodie v HM Adv 2013 JC 142 at para [14]).  The trial judge accepted that he did not direct the jury in relation to the “resemblance“ identification.  The resemblance identification was an important part of the Crown case.  It pointed to the accused as either being the person or resembling the person who, according to Mr Keers, had been acting suspiciously outside his aunt’s house on the previous day.  The failure to give a direction on the unreliability of this form of identification occurred in circumstances where, as in Holland, the undisclosed information would have been helpful to the defence in undermining the dock identification.  In the absence of the safeguard of the trial judge’s direction, the trial was unfair.

Cadder

[25]      The Crown conceded that the evidence of the appellant’s interview on 31 October was inadmissible.  That evidence included the appellant’s statement that Andrew Hay had told him that Colin Miller “threw her [the deceased] doon an tied her up.”  In my view, that concession was rightly made.

[26]      The Crown argued that the evidence of the interview did not deprive the appellant of a fair trial and did not give rise to a miscarriage of justice.  There was no real possibility that the jury’s verdict would have been different if the interview had not been before it.  There was sufficient evidence to convict the appellant in the absence of that evidence. 

[27]      Counsel for the appellant submitted that the evidence was important to the conviction.  There was a real possibility that the jury would have reached a different verdict taking all the circumstances of the trial into account if they had not had that evidence before them (Cadder v HM Adv 2010 SCCR 951, at para [64]; McInnes v HM Adv 2010 SCCR 286).

Conclusions

Convertible/compatibility grounds

[28]      In my opinion, the appellant’s right to raise compatibility issues before this court has already been extinguished.  No devolution minutes were lodged before the appeal court in 2009.  Counsel for the appellant submitted that it does not matter whether devolution minutes were lodged.  All that is required is that the issue was capable of being a devolution issue before the commencement of the 2012 provisions (Carberry v HM Adv, supra, at para [53]).  As such, it is a convertible devolution issue regardless of whether the devolution minute was lodged.  Furthermore, counsel emphasised that in 2009 the appeal court did not provide a determination on the grounds of appeal.  It simply refused to receive them. 

[29]      I do not accept those arguments.  No devolution minutes were lodged in relation to grounds of appeal 1 and 2 when the court refused to receive them.  Therefore there were no devolution issues properly before the court.  Any right that the appellant might have had to raise them was lost when the Court refused to accept the proposed grounds of appeal.  If however there were live devolution issues, notwithstanding the lack of any devolution minutes, those issues were extinguished when the court refused the appeal and, in any event, when the Supreme Court refused special leave to appeal.  In my opinion, a determined devolution issue cannot be converted to a compatibility issue by virtue of a reference from the Commission (Carberry v HM Adv 2014 JC 56 at paras [52]-[53]).  In any case, the misdirection on dock identification could not have constituted a devolution issue.  Therefore it cannot now constitute a compatibility issue. 

Cadder/disclosure grounds
[30]      In my view, the evidence of Mr Keers would not have carried much weight on the question of the time of death.  The timing of the death was established by a number of other sources of evidence that were not challenged by the appellant and were not open to realistic challenge.  The undisclosed evidence was of little weight in the context of the evidence against the appellant.  Mr Keers’ statements gave conflicting accounts of the time of death.  Even if they had been disclosed before the trial, the disclosure would not have affected the outcome.

[31]      Looking at the case overall, I consider even if the Crown had not led the evidence of the police statement, there would nonetheless have been a compelling Crown case.  

[32]      In my opinion, the Crown case has wrongly been described by both the appellant and the Commission as having been thin.  I have the impression that the Commission has related the alleged thinness of the case to the fact that it was largely circumstantial.  In the experience of this court, circumstantial cases often have particular strength.  This, I think, is such a case.  The appellant invited David McCormack to join with him in theft by housebreaking two days before the murder.  He was sighted outside the locus on the day before the murder.  He was acting in a way that gave rise to suspicion.  He returned to his home at around 11am on the day of the murder. He was physically sick.  He continued to act suspiciously in the weeks after the incident.  He gave details to a witness as to what happened in “the old woman’s house”.  He had special knowledge of the circumstances of the crime.  He claimed to have heard of them on the radio at a time when no details had yet been released to the media.  Applying the test that this court preferred in Brodie v HM Adv (supra, at paras [34]-[42]; [46]-[51]), I conclude that neither of these irregularities led to a miscarriage of justice.

Misdirection

[33]      The Crown conceded that there had been a misdirection by omission.  In my view, that concession was rightly made.  I agree that the misdirection was material.  However, the misdirection must be seen in the whole context of the trial.  The appellant’s counsel emphasised the weakness of the dock identification in his speech to the jury.  It would have been clear to the jury that the identification, such as it was, was of little value.  Moreover, the strength of the Crown case was such that the misdirection was of no moment.  In the whole circumstances, I conclude that the misdirection did not lead to a miscarriage of justice. 

Disposal

[34]      I propose to your Ladyships that we should refuse the appeal.

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 94

XC477/13

Lord Justice General

Lady Smith

Lady Clark of Calton

OPINION OF LADY SMITH

In the Referral by

THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the case of

PATRICK DOCHERTY

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

For the appellant: Mitchell, Brown;  John Pryde & Co SSC, Edinburgh

For the Crown: Prentice QC (sol adv), AD;  Crown Agent

29 August 2014

[35]      I agree with the Opinion of your Lordship in the chair that the appeal should be refused.  I have nothing further to add.

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 94

XC477/13

Lord Justice General

Lady Smith

Lady Clark of Calton

OPINION OF LADY CLARK OF CALTON

In the Referral by

THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the case of

PATRICK DOCHERTY

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

For the appellant: Mitchell, Brown;  John Pryde & Co SSC, Edinburgh

For the Crown: Prentice QC (sol adv), AD;  Crown Agent

29 August 2014

[36]      I agree with the Opinion of your Lordship in the chair that the appeal should be refused.